Nursing and Midwifery Council:

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1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 26 January 2018 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Registrant Nurse: Mr Richard Imperio NMC PIN: 01D1817O Part(s) of the register: Registered Nurse Sub Part 1 Adult Nursing April 2001 Area of Registered Address: England Type of Case: Conviction Panel Members: Legal Assessor: Panel Secretary: Andrew Galliford-Yates (Chair, Registrant member) Jane Fraser (Registrant member) Linda Redford (Lay member) Hala Helmi Calvin Ngwenya Nursing and Midwifery Council: Represented by Simon Newman, Case Presenter. Registrant: Facts proved: Facts not proved: Fitness to practise: Sanction: Interim Order: Not present or represented in his absence All None Impaired Striking Off Order Suspension Order (18 months) Page 1 of 16

2 Decision on Service of Notice of Hearing: The panel was informed at the start of this hearing that Mr Imperio was not in attendance and that written notice of this hearing had been sent to his current registered address by recorded delivery and by first class post on 19 December Royal Mail Track and Trace documentation confirmed that the notice of hearing was delivered and signed for on 28 December Mr Newman submitted the NMC had complied with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). The panel accepted the advice of the legal assessor. The panel took into account that the notice letter provided details of the allegation, the time, date and venue of the hearing and, amongst other things, information about Mr Imperio s right to attend, be represented and call evidence, as well as the panel s power to proceed in his absence. In the light of all of the information available, the panel was satisfied that Mr Imperio has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. Decision on proceeding in the absence of the Registrant: Mr Newman invited the panel to exercise its discretion and proceed in the absence of Mr Imperio. He referred the panel to Mr Imperio s Your response to the notice of hearing form (response form) dated 5 January 2018, where Mr Imperion clearly indicated that he would not be attending this hearing, wanted the hearing to proceed in his absence and did not wish request a postponement. Mr Newman submitted that, in these circumstances, it would be appropriate for the panel to proceed in the public interest and the expeditious disposal of this matter. Page 2 of 16

3 The panel accepted the advice of the legal assessor. The panel took into account Mr Imperio s response form which was signed and dated 5 January It noted that Mr Imperio had indicated that he would not be attending this hearing and that he wanted the panel to proceed in his absence. The panel decided to proceed in the absence of Mr Imperio. In reaching this decision, the panel considered the submissions of Mr Newman and the advice of the legal assessor. It has had regard to the overall interests of justice and fairness to all parties. It noted that: no application for an adjournment has been made by Mr Imperio; there is no reason to suppose that adjourning would secure Mr Imperio s attendance at some future date, particularly given that he is currently serving a 10 year custodial sentence; there is a strong public interest in the expeditious disposal, particularly given the nature and the seriousness of the charges. Having weighed the interests of Mr Imperio with those of the NMC and the public interest in an expeditious disposal of this hearing, the panel determined that it is fair and appropriate to proceed in his absence. Details of charge: That you, a registered nurse: 1) On 31 March 2017, at the Crown Court at Isleworth were convicted of: a) Two counts of indecent assault on a female; Page 3 of 16

4 b) Cause/incite a female child aged under 13 to engage in sexual activity no penetration; c) Sexual assault of a female child under 13; d) Attempted rape. AND in light of the above, your fitness to practise is impaired by reason of your conviction. Background: Mr Imperio was employed as a staff nurse at Imperial College Healthcare NHS Trust (the Trust). He was referred to the NMC following his conviction at the Crown Court at Isleworth (the Crown Court) for multiple serious sexual offences against a female under 16. At the time of the offences, Mr Imperio was living with his family and cohabiting with the victim s family in shared accommodation. It was during this time and subsequently during a later period, when the victim s family had moved to another location, that Mr Imperio committed the sexual offences against the victim. On 31 March 2017 Mr Imperio was convicted by a jury after a trial of two counts of indecent assault on a female, causing/inciting a girl under 13 to engage in sexual activity, sexual assault of a female child under 13 and attempted rape. He also pleaded guilty to another offence which does not appear on the NMC charge sheet. As result of his conviction, Mr Imperio was sentenced to 10 years imprisonment, made subject to a Sexual Harm Prevention Order, until further order, a further order disqualifying him from working with children and was placed on the Sex Offenders Register for an indefinite period. Page 4 of 16

5 Decision on the findings on facts and reasons: In reaching its decisions on the facts, the panel considered all the documentary evidence adduced in this case together with the submissions made by Mr Newman, on behalf of the NMC. In relation to the finding of facts, Mr Newman referred the panel to Rule 31 (2) of the Rules and invited the panel to have regard to the Certificate of Conviction dated 7 June 2017 and the transcript of the sentencing remarks from the Crown Court dated 12 May Mr Newman informed the panel that in his response form, Mr Imperio had made admissions to all of the NMC charges. The panel heard and accepted the advice of the legal assessor. The panel was aware that the burden of proof rests on the NMC, and that the standard of proof is the civil standard, namely the balance of probabilities. This means that the facts will be proved if the panel is satisfied that it is more likely than not that the incidents occurred as alleged. The panel noted Mr Imperio s admissions to all of the charges in his response form dated, 5 January Having been provided with a copy of the certificate of conviction, dated 7 June 2017, obtained from the Crown Court, the panel finds that the facts are found proved in accordance with Rule 31 (2) which states: 31 (2) Where a registrant has been convicted of a criminal offence Page 5 of 16

6 (a) a copy of the certificate of conviction, certified by a competent officer of a Court in the United Kingdom (or, in Scotland, an extract conviction) shall be conclusive proof of the conviction; and (b) the findings of fact upon which the conviction is based shall be admissible as proof of those facts. (3) The only evidence which may be adduced by the registrant in rebuttal of a conviction certified or extracted in accordance with paragraph (2)(a) is evidence for the purpose of proving that she is not the person referred to in the certificate or extract. In light of the above, the panel found the facts proved, by way of Mr Imperio s admissions and the certificate of conviction. Submissions on impairment: The panel then moved on to consider whether Mr Imperio s fitness to practise is currently impaired, by reason of his conviction. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. The panel heard submissions from Mr Newman on behalf of the NMC. In his submissions on impairment, Mr Newman addressed the panel on the need to have regard to protecting the public and the wider public interest. This included the need to declare and maintain proper standards and to maintain public confidence in the profession and in the NMC as a regulatory body. Mr Newman submitted that Mr Imperio has been convicted of very serious and multiple offences, the gravity of which are reflected in the 10 year prison sentence imposed by the Crown Court. He referred the panel to the case of CHRP v (1) GDC and (2) Fleischmann [2005] EWHC 87 (Admin) and invited the panel to find that Mr Imperio s Page 6 of 16

7 fitness to practise is impaired by virtue of his conviction. Mr Newman submitted that in the circumstances of this case, a finding of impairment was necessary on both public protection and public interest grounds and invited the panel to make a finding of impairment by reason of Mr Imperio s conviction. Decision on impairment: The panel next went on to decide whether, as a result of the conviction, Mr Imperio s fitness to practise is currently impaired. The panel notes that only five counts are referred to on the NMC s charges. The panel noted that the judge s sentencing remarks refer to a sixth count to which Mr Imperio pleaded guilty. The panel was aware that only the five counts referred to on the NMC charge sheet can be the basis of any finding on impairment. However, all of the sentencing remarks provide an important background and contain evidence of the findings of fact upon which the conviction as set out in the NMC charges is based. The panel accepted the advice of the legal assessor which included reference to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). In considering the issue of impairment, the panel had careful regard to the approach formulated by Dame Janet Smith in her report of the 5 th Shipman inquiry, and which was cited with approval in the case of the Grant. Do our findings of fact in respect of the doctor s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a. Has in the past acted/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; Page 7 of 16

8 b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d. The panel determined that limbs a, b and c of the guidance in the case of Grant are engaged in this case. The panel determined that Mr Imperio s actions had in the past placed patients at unwarranted risk of harm. As the sentencing judge observed, Mr Imperio committed a clear abuse of trust. The panel also noted that the victim s parents trusted Mr Imperio to look after their child. While the offending did not occur with patients, its protracted nature over several years demonstrates an attitudinal issue. The panel considered that the clear transgression of sexual boundaries in Mr Imperio s personal life over a lengthy period raised a real risk of such behaviour being exhibited in a clinical environment towards vulnerable patients. The panel considered that by virtue of his conviction, Mr Imperio has in the past brought the nursing profession into disrepute and breached the fundamental tenets of the profession. As a registered nurse Mr Imperio occupied a privileged position of trust and the public expect nurses to adhere to the highest standards of behaviour and conduct. Mr Imperio breached the fundamental tenets requiring him to uphold the reputation of his profession and to abide by the laws of this country. The panel considered that the issue it had to determine was that of current impairment. It also had to look to the future and consider whether Mr Imperio is liable to act in such a way as to place patients at unwarranted risk of harm, breach fundamental tenets of the profession or bring the profession into disrepute. In considering the risk of repetition in this case the panel took into account the level of insight and remorse demonstrated by Mr Imperio. Page 8 of 16

9 When considering the question of insight, the panel had regard to the Judge s sentencing remarks that: Your lies in your attempt to minimise your guilt are an aggravating factor in this case and it's clear from the pre-sentence report prepared by the probation service that you continue to maintain that lie. You minimise your responsibility for your terrible offences against The panel noted that Mr Imperio has not displayed any insight or remorse for his actions. While serving his custodial sentence he has completed his response to the charges form explaining why he would not attend the hearing. However, there has been no correspondence from him dealing with insight, reflection, remorse or the impact of his conduct on the victim. Furthermore, the panel has not been presented with any evidence of remediation or steps taken by Mr Imperio to address his offending behaviour. Therefore there is no evidence of insight into his convictions. With regard to the risk of repetition, the panel noted the Judge s sentencing remarks that: Your predatory behavior was not confined to those occasions at night The probation officer concluded in her report that, particularly in light of your failure to accept more than minimal responsibility for your offending behaviour, you pose a high risk of serious harm to children, including the risk that you will in the future commit the same sorts of offences against other children as you committed against Having regard to the above, the panel concluded that in the absence of insight or remorse and Mr Imperio s lack of remediation, the risk of repetition of the conduct that led to his conviction is high. The panel therefore decided that a finding of impairment was necessary on the grounds of public protection. The panel bore in mind that the overarching objectives of the NMC are to protect, promote and maintain the health safety and well-being of the public and patients, and to uphold/protect the wider public interest, which includes promoting and maintaining public confidence in the nursing and midwifery professions and upholding the proper professional standards for members of those professions. The panel determined that, in light of Mr Imperio s serious criminal convictions, the need to uphold proper professional Page 9 of 16

10 standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. Having regard to all of the above, the panel was satisfied that Mr Imperio s fitness to practise is currently impaired by reason of his conviction. Determination on sanction: The panel has considered this case very carefully and has decided to make a strikingoff order. The effect of this order is that the NMC register will show that Mr Imperio s name has been struck-off the register. In reaching this decision, the panel has had regard to all the evidence that has been adduced in this case, including the submissions of Mr Newman. Mr Newman addressed the panel on the question of sanction and noted the aggravating and mitigating factors in this case. He referred the panel the Sanctions Guidance ( SG ) and the cases of Fleischmann and Khan v The General Pharmaceutical Council [2016] UKSC 64. Mr Newman submitted that given the serious nature of Mr Imperio s conviction, the appropriate sanction in these circumstances would be that of a striking off order. The panel heard and accepted the advice of the legal assessor which included reference to the case of Fleischmann. The panel has borne in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such consequences. The panel had careful regard to the SG published by the NMC in July It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. Page 10 of 16

11 The panel first considered the aggravating and mitigating factors in this case. The panel identified the following as aggravating factors in this case: Mr Imperio s lack of insight and remediation; The conduct leading to the conviction occurred over a long period of time spanning some 6 years; The offending involved an abuse of a position of trust; Mr Imperio s attempt to minimise the severity of the offence and his guilt at the criminal trial; Mr Imperio s actions resulted in serious psychological harm to the victim. The panel went on to consider the mitigating factors, and noted that Mr Imperio pleaded guilty to one of the charges at the Crown Court. However, the panel noted in the judge s sentencing remarks that this was Mr Imperio s attempt to minimise the severity of his offending. The panel therefore concluded that there were no mitigating factors in this case. The panel then turned to the question of which sanction, if any, to impose. It considered each available sanction in turn, starting with the least restrictive sanction and moving upwards. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case. The panel decided that it would not be proportionate, would not protect the public or be in the public interest, to take no further action in light of its findings at the impairment stage. Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the SG, which states that a caution order may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must Page 11 of 16

12 not happen again. The panel considered that Mr Imperio s case was not at the lower end of the spectrum and that a caution order would be inappropriate in view of the seriousness of the case. The panel decided that it would not be proportionate, would not protect the public or be in the public interest in declaring and upholding standards and maintaining public confidence in the profession and marking Mr Imperio s behaviour as unacceptable. The panel next considered whether placing conditions of practice on Mr Imperio s registration would be a sufficient and appropriate response. The panel was mindful that any conditions imposed must be proportionate, measurable and workable. The panel noted there were no clinical concerns in relation to Mr Imperio s clinical practise. The panel determined that it was not possible to formulate conditions which would address the concerns emanating from Mr Imperio s conviction and the attitudinal issues highlighted in his conduct. Also Mr Imperio is serving a 10 year custodial sentence. The panel therefore concluded that placing conditions on Mr Imperio s registration would not adequately address the seriousness of this case, protect the public nor address the public interest. The panel then went on to consider whether a suspension order would be an appropriate sanction. The panel had regard to the SG where it states: This sanction may be appropriate where the misconduct is not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome than permanent removal from the register. This is more likely to be the case when some or all of the following factors are apparent: A single instance of misconduct but where a lesser sanction is not sufficient. No evidence of harmful deep-seated personality or attitudinal problems. No evidence of repetition of behaviour since the incident. The panel is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour Page 12 of 16

13 ... The panel considered that the conduct that led to Mr Imperio s convictions was a sustained pattern of behaviour over a long period. Mr Imperio has failed to demonstrate any insight or provide the panel with any evidence of remediation or any reflection as to the impact of his actions on the victim and reputation of the nursing profession as a whole. As noted by the sentencing judge, Mr Imperio caused serious psychological harm to a child, who was placed in his care by her parents who trusted him. He abused that trust by committing serious sexual assaults on the child. He was convicted for that offending, which took place over several years and sentenced to 10 years imprisonment, made subject to a Sexual Harm Prevention Order, until further order, was placed on the sex offenders register indefinitely and disqualified from working with children. He has shown a persistent lack of insight into the seriousness of his offending or the consequences on his victim. In the panel s view this was indicative of a deep seated attitudinal problem. The panel determined that the seriousness of the convictions, as highlighted by the facts found proved was a significant departure from the standards expected of a registered nurse. The panel concluded that the behaviour demonstrated a serious breach of the fundamental tenets of the profession. Balancing all of these factors, the panel considered that the behaviour in this case would not be addressed by an order of suspension, nor would such an order properly protect the public interest, preserve public safety or maintain and uphold proper professional standards. Finally, in considering a striking-off order, the panel took note of the following paragraphs of the SG; can public confidence in the professions and the NMC be maintained if the nurse or midwife is not removed from the register? is striking-off the only sanction which will be sufficient to protect the public interest? Page 13 of 16

14 is the seriousness of the case incompatible with ongoing registration The panel further considered the following factors: A serious departure from the relevant professional standards as set out in key standards, guidance and advice. Doing harm to others or behaving in such a way that could foreseeably result in harm to others, particularly patients or other people the nurse or midwife comes into contact with in a professional capacity. Harm is relevant to this question whether it was caused deliberately, recklessly, negligently or through incompetence, particularly where there is a continuing risk to patients. Harm may include physical, emotional and financial harm. The seriousness of the harm should always be considered. Abuse of position, abuse of trust, or violation of the rights of patients, particularly in relation to vulnerable patients. Any serious misconduct of a sexual nature, including involvement in child pornography.... Persistent lack of insight into seriousness of actions or consequences. Convictions or cautions involving any of the conduct or behaviour in the above examples. The panel considered the specific nature of Mr Imperio s offences. The panel noted that these were serious sexual offences involving the sexual assault of a child over a 6 year period. This type of offence gravely undermines patients and the public s trust in the nursing profession. Furthermore, these offences and convictions seriously impact on the reputation and confidence in the profession and the regulator. At the criminal trial, the judge, in his sentencing remarks noted that: Your lies in your attempt to minimise your guilt are an aggravating factor and you continue to maintain that lie. It is the panel s view that this demonstrates a lack of insight. The panel, in line with the sentencing judge, consider that Mr Imperio continues to pose a high risk of serious Page 14 of 16

15 harm to children, and that there is significant risk of repetition. Accordingly, the panel was of the view that Mr Imperio presents a significant risk to the public. Balancing all of these factors and after taking into account all of the evidence before it during this case, the panel determined that the only appropriate and proportionate sanction is that of a striking-off order in order to protect the public. The panel recognises that Mr Imperio is barred from working with children. However, the panel was of the view that if Mr Imperio were to practise as a nurse in the future he would undoubtedly come into contact with children as part of his role even if they were not his patients. Further it is the only appropriate and proportionate sanction which can uphold the public interest considering the effect of Mr Imperio s actions in bringing the profession into disrepute by adversely affecting the public s view of how a registered nurse should conduct himself. The panel has concluded that nothing short of a striking-off order would be sufficient in this case. The panel concluded that Mr Imperio s actions demonstrate a significant departure from the standards expected of a registered nurse and are fundamentally incompatible with him remaining on the register. The panel considered proportionality and was satisfied that in the circumstances a striking off order is proportionate when considering the ongoing risk to public safety. This order is also necessary to mark the importance of maintaining public confidence in the profession, and to send to the public and the profession a clear message about the standard of behaviour required of a registered nurse. Determination on Interim Order: Mr Newman made an application for an interim suspension order for 18 months in the light of the panel s decision on sanction. The panel heard and accepted the advice of the legal assessor. Page 15 of 16

16 The panel decided to make an interim suspension order for a period of 18 months. The reasons for the interim suspension order are as follows: The panel had particular regard to its earlier finding on impairment. It also bore in mind the seriousness of the matters which it has found proved. In the light of the registrant serving a 10 year custodial sentence, an interim order is not necessary to protect the public. Given the panel s earlier decision on impairment and sanction, an interim order is in the public interest to maintain public confidence and uphold proper standards of conduct and behaviour. For the reasons already set out in detail in the decision on sanction, the panel considered that workable interim conditions of practice could not be formulated which would be adequate to address the concerns pending any appeal. The panel therefore concluded that it is proportionate for Mr Imperio s registration to be subject to an interim suspension order to cover the appeal period. To do otherwise would be inconsistent with its earlier findings. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If no appeal is made, then the interim order will be replaced by a striking off order 28 days after Mr Imperio is served the decision of this hearing in writing. That concludes this determination. Page 16 of 16